barry s. pearlman yvonne e. lang nicole g. minkow · • family and medical leave act (fmla) ......

NAVIGATING THE REASONABLE ACCOMMODATION MAZE: LEARNING HOW TO AVOID COMMON LANDMINES AND

PITFALLS WITH A DISABLED WORKER

Presented by:

BARRY S. PEARLMAN

YVONNE E. LANG

NICOLE G. MINKOW

15910 Ventura Boulevard, 18th FloorEncino, CA 91436

(818) 501-4343Fax: (818) 386-5700

Website: www.pbw-law.com

• California Law requires employers to engage in a “timely, good

faith, interactive process”

• Required for all employee and applicants.

• This obligation often interferes with management’s ideas of

how to effectively run the business.

• Disability Discrimination is the most common complaint filed

with the DFEH.

THE INTERACTIVE PROCESS

CONUNDRUM

• Discussion of laws protecting injured

workers;

• Interactive process and return to work

concerns;

• Best Practices in conducting the Interactive

Process

Focus of Presentation

• Workers’ Compensation

• Family and Medical Leave Act (FMLA)

• California Family Rights Act (CFRA)

• Americans with Disabilities Act (ADA)

• Fair Employment and Housing Act (FEHA)

• Pregnancy Disability Leave (PDL)

Laws Protecting

Disabled Employees in California

Employment discrimination claims under FEHA do not require a

tort claim because they are already subject to a comprehensive

scheme for administrative review through the Department of

Fair Employment and Housing. Garcia v. Los Angeles Unified

School Dist., 173 Cal.App.3d 701, 710-711 (1985

REMEMBER – No Tort Claim

Required

2012-2014 FISCAL YEAR EEOC

CHARGES IN CALIFORNIA

FY 2014 FY 2015 FY 2016

Race 34.2% 34.7 % 32.5%

Sex 26.8% 27.9% 26.6%

National

Origin

17.3% 16.6% 15.8%

Religion 4.4% 4.7% 4.7%

Retaliation 48.5% 47.2% 50%

Age 24.7% 25.4% 25.8%

Disability 31.2% 31.9% 32.6%

• Paid Family Leave (PFL) – Not a leave right

• Rehabilitation Leave

• Military Spouse Leave

• Time Off for Victims of Domestic Violence or

• Serious Crime

• Time Off for School Children and

• Kin Care

• Paid Sick Leave

• Bone Marrow/Organ Donation Leave

Wait… There’s more

• Is Workers’ Compensation Law Triggered?

• Is PDL (Pregnancy Disability Leave) Law Triggered?

• Is the Leave Medically-Related (FMLA/CFRA)?

• Is there a Duty to Offer Reasonable Accommodation

(ADA/FEHA)?

• What are the employer’s obligations to maintain health coverage

and other benefits?

• Does the employer need to send out FMLA/CFRA notices to an

employee injured on the job?

Managing Employee Leaves

Think Before You Leap!

• Interference with LOA

• Reinstatement rights

• Accommodating work restrictions

• Interactive process

• Discipline

• Termination

Managing A Disabled Employee

Common Areas of Concern

• Includes discouraging employee from using FMLA/CFRA

leave (i.e. suggestion that delay of surgery would better

accommodate needs of business)

• Mischaracterizing leave

• Entitled to medical diagnosis?

• Failing to send out appropriate forms and notices.


Do Not Interfere With LOA

• I cannot communicate with the injured worker

• My workers’ compensation carrier/claims

examiner/attorney is handling the leave of absence

• I need to wait until the employee is P&S/MMI to discuss a

reasonable accommodation

• The Union is communicating with the injured worker; or I

must coordinate RTW and accommodation issues with the

Union.


Common Misconceptions

The Fair Employment and

Housing Act

California Government Code section 12940

• Prohibits discrimination on the basis of “physical disability,

mental disability and medical condition”;

• Limitation on major life activity need not be “substantial”

– provides broader coverage than the ADA;

• Perceived physical and mental disabilities included;

• Requires reasonable accommodation provided to disabled

employee who can perform the essential functions of the

job.

•The FEHA requires employers to provide reasonable accommodation

for the known physical or mental disability of an applicant or employee

unless it would create an undue hardship.

•The employee usually has the burden of giving the employer notice of a

disability (unless it is observable or otherwise known).

•The employer has the burden to take positive steps to accommodate

the employee’s limitations unless to do so would create an undue

hardship.

•Finally, the employee has a duty to cooperate with an employer’s

efforts by explaining his or her restrictions and qualifications for the

job.

The Interactive Process

•Marvin has manic depressive disorder. He has worked for you for 15

years. After several employees, including Marvin, complained about

rude supervisors, he was overheard making statement to co-workers

about “shooting up” the place. Marvin told this to approximately five

separate individuals.

•You call the police and remove Marvin from the workplace. Two days

later, you receive a note placing Marvin off work for one month.

•Marvin complains the outbursts and threats were made as a direct

result of his disability. Is Marvin entitled to the time off?

Case Analysis

•Remember, to be entitled to FEHA and ADA protection, the individual

must be “qualified” to perform the essential functions of the job, with

or without accommodation.

•The ADA does not require that an employee whose unacceptable

behavior threatens the safety of others be retained, even if the

behavior stems from a mental disability.

•The Court stated “And while an employee can be qualified despite

adverse reactions to stress, he is not qualified when that stress leads

him to threaten to kill his co-workers in chilling detail and on multiple

occasions (here, at least five times)”

•Threats should be “serious and credible.”

Mayo v. PCC Structurals, 795 F.3d 941 (9th Cir. 2015)

CASE ANALYSIS

•Be careful!!

•Off-handed expressions of frustration or inappropriate jokes do not

necessarily render an employee “not qualified. “

•An Employee who is rude, gruff, or unpleasant will not fall in the

same category as Mayo.

•Many cases still hold “conduct resulting from a disability” is

considered to be part of the disability, rather than a separate basis for

termination.

Mayo v. PCC Structurals, 795 F.3d 941 (9th Cir. 2015)

CASE ANALYSIS

UNDUE HARDSHIP

• Requires significant difficulty or expense.

• Consider:

• Financial resources of the facility and the company

• Number of employees

• Impact accommodations place on the operation

VERY DIFFICULT TO PROVE

The Interactive Process

• The fundamental job duties of the employment position held by the

disabled employee. Considerations include:

• The reason the position exists is to perform that function.

• The limited number of employees available among whom the

performance of that job function can be distributed.

• The incumbent in the position is hired for his or her expertise or

ability to perform the particular highly specialized function.

• Does not include the “marginal functions” of the position (those that,

if not performed, would not eliminate the need for the job or that

could be readily performed by another employee or that could be

performed in an alternative way.)

Essential Job Functions

CONSIDERATIONS FOR

“REASONABLE” ACCOMMODATIONS

The goal is to find the best match between the employee’s

capabilities and an available position

The FEHA does not obligate an employer to choose the best

accommodation or the specific accommodation that a disabled

employee or applicant seeks

Accommodations must be reasonable, meaning that the size of the

employer, the type of business, and the positions available are

taken into consideration.

Examples include:

-Job restructuring of non essential job functions

-Part-time, modified work schedules

-Reassignment to a vacant position or another location

-Temporary leave of absence

-Equipment or special devices

CASE ANALYSIS

Evan is a solid waste equipment operator a City

as a waste collector. His job includes driving the

waste truck, operating the equipment, moving

waste bins, etc.

Evan presents work restrictions prohibiting

bending, twisting, squatting and lifting more

than 10 lbs.

What type of accommodation should Evan be

offered?

CASE ANALYSIS

When you engage in the interactive process, you

show Evan the job description contained in his

personnel file, and explain that bending,

twisting, squatting and lifting more than 10 lbs

are all essential functions of the job and you

cannot accommodate the restrictions.

Evan asks for the following accommodation:

George can do the heavy lifting and I can drive the

truck and operate the waste controls from the

driver’s seat.

CASE ANALYSIS

Would the result be any different if Evan claimed

“that is how we have been operating for years”

and Supervisor Dan had no problem with it.

CONSISTENCY IS KEY

Have a temporary modified / alternate duty

policy.

If it includes a period of time that mod/alt duty will

be available be consistent.

Inconsistent behavior in application of policy

establishes “new normal”.

Parade of Horribles – Examples

WHAT ABOUT JOB REASSIGNMENT?

Typically sought when there are no reasonable accommodations

that permit the injured employee to perform the essential

functions of his or her job;

Employer has duty to ascertain and offer suitable positions;

Employers must determine whether the employee is qualified

and able to perform the essential functions of the position to

which reassignment is sought;

The disabled employee is entitled to

preference over existing employees when

considering reassignment.

MUST THE EMPLOYER CREATE A NEW JOB?

To be protected, individuals must be qualified to do their job!

An employer is NOT required to create a new job

An employer is NOT required to move another employee

An employer is NOT required to promote the disabled employee, and

An employer is NOT to violate another employee’s rights in order toaccommodate a disabled employee.

The duty is to reassign a disabled employee if an already funded,vacant position at the same level exists. Hastings v. Dept. ofCorrections (2003) 110 Cal.App. 4th 963, 972.

Note: Although an employer is not obligated to compensate anemployee at the same rate of pay if they are moved to a lower paidposition as an accommodation, employers can avoid retaliationclaims if they maintain the same level of compensation.

CASE ANALYSIS

Through the interactive process with Evan, our

waste equipment operator, you identify two open

and available positions.

Evan is not qualified for either.

Evan requests a leave of absence until a position

becomes available.

You end the employment relationship.

CASE ANALYSIS

Nealy v. City of Santa Monica

(2015) 234 Cal.App.4th 359

You have met your interactive process obligations by demonstrating there were no vacant positions within your company for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation.

What about a discrimination claim? Employee must show he could have performed the essential functions of the job, with or without accommodation. Cannot do so here.

CASE ANALYSIS

Nealy v. City of Santa Monica

(2015) 234 Cal.App.4th 359

Requesting a reasonable accommodation is now

protected activity under FEHA (2016

amendment). Thus, this portion of the Nealy

case is invalidated by statute. Presumably,

Nealy’s retaliation claim could have proceeded to

trial under the new law.

HOW TO EFFECTIVELY IMPLEMENT THE INTERACTIVE PROCESS

Begin the process when triggered – do not delay

Meet with employee in person, if possible

Interview others and obtain pertinent medical information

Complete any necessary forms, reports, claims, etc. anddocument your file

Make sure company policies are up to date, comply with the lawand are applied consistently

Obtain job descriptions and update regularly


Do not disparage or discriminate against an employee whoreports an injury, claim or disability

Examine all reasonable accommodations

Stay in contact with the employee

Do not forget the process is “on going” and must be revisited

Develop a plan to offer an accommodation, if available, andbe prepared to deal with an employee you cannot accommodate

Remember these conversations are confidential and containsensitive medical information


DOCUMENT THE PROCESS!!

Identify participants

Identify all documents reviewed

List work restrictions

List essential functions of the job

List all accommodations suggested and

considered (even the unreasonable ones)

List all alternative positions considered

Employee comments

Everyone signs

Complete this form every time a new restriction is provided

CASE ANALYSIS

Sarah was an assistant in a medical office. Her performance was substandard and she was repeatedly criticized and counseled by her supervisor, Rebecca. After one year of repeated concerns, Sarah became stressed out and could not handle working for Rebecca any longer. Sarah sought medical treatment for work related stress, anxiety and depression.

Sarah took a FMLA/CFRA leave of absence due to her medical condition. Upon her return, she presented a doctor’s note stating she could return to work provided she is transferred to another department reporting to another supervisor.

CASE ANALYSIS

IS SARAH ENTITLED TO THE ACCOMMODATION?

CASE ANALYSIS

Higgins-Williams v. Sutter Medical Foundation

(2015) 237 Cal.App.4th 78

Inability to work for a particular supervisor is NOT a disability under the FEHA

An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA.

Would the result be different if the employee could prove the supervisor’s oversight was not “standard?”

A LEAVE OF ABSENCE MAY BE A

REASONABLE ACCOMMODATION

Employers should not have a policy automatically ending

temporary modified duty without engaging in the interactive

process;

Employers should not have a policy imposing time limits on

leave;

Length of time for leave should be definite. “Likely employee

will be able to return at the end of the leave”;

Leave of Absence as an accommodation should only occur

when there are no reasonable accommodations that allow the

employee to continue to work;

Although indefinite leaves are not required, a hard and fast

cap without considering the individual is a problem.

CASE ANALYSIS

Jonathan, an IT specialist for a municipality, is currently on a 30-day Performance Improvement Plan for poor performance, including low call volume and failing to meet his sales numbers. The day before the PIP is scheduled to expire, Jonathan trips over the computer wire and sprains his ankle. He is written “off work” for three months. Meanwhile, you were ready to terminate Jonathan’s employment because he failed to meet the mandates of the PIP.

CASE ANALYSIS

You receive the doctor’s note placing Jonathan “off work” for three months. What do you do?

CASE ANALYSIS

Jonathan’s FMLA/CFRA leave expired and you receive a new note placing Jonathan “off work” for three more months. What do you do?

CASE ANALYSIS

Jonathan is very reliable. He brings you a new note placing him “off work” every three months. This goes on for more than one year.

When can you terminate Jonathan?

• Most common landmine with disabled employees

• Must analyze whether attendance is an essential

function of the job

• Not as simple as you think -

• Samper v. Providence St. Vincent Medical Center (9th

Cir. 2012) 675 F.3d 1233. NICU Nurse

Beware of Attendance Policies

•Be consistent

•Review policies

•Could medical condition be the cause of the

improper conduct?

•Beware of renewed/continued obligation to

engage in interactive process

Is Discipline Appropriate?

Peter is a Risk Analyst for a large Public Agency. Peter’s

work is suffering. He is missing deadlines, cannot

complete assignments and is slow to respond to

management inquiries.

During a counseling session with Peter, he reveals that he

has Multiple Sclerosis which is causing him to lose focus

and concentration.

What do you do?

Case Analysis

You ask Peter to let you know if he needs an

accommodation to perform the essential functions of the

job and provide him with appropriate paperwork to give to

his physician. Peter does not want the doctor to get

involved and says he can “deal with it.”

The performance issues worsen and Peter’s supervisor is

ready to terminate.

Case Analysis

• Provide employee with a claim form if they put you on notice of

a potential work related injury – don’t wait for them to ask.

• Evaluate whether the employee is eligible for FMLA/CFRA

leave and provide all required notices.

• Manage the workers’ compensation leave in keeping

with the requirements of ADA/FEHA.

Engage in the interactive process

Provide reasonable accommodations


• Labor Code §132a prohibits discrimination on the basis of a

workplace injury or workers’ compensation claim. The employee

must establish that they suffered some detrimental consequences

based on an industrial injury and that the employer singled out

the employee for disadvantageous treatment because of the

injury.

• No intent requirement


Workers’ Compensation Retaliation

QUESTIONS & ANSWERS

NAVIGATING THE REASONABLE ACCOMMODATION

MAZE: LEARNING HOW TO AVOID COMMON

LANDMINES AND PITFALLS WITH A DISABLED

WORKER

NOTICE TO READERS

This pamphlet contains Case law Update. Its content was not intended to provide any legal

advice. Distribution of this material is for educational use only and is not intended as

consideration for future business. This document is the property of Pearlman, Borska & Wax and

may not be further distributed without consent.

COPYRIGHT 2017 @ PEARLMAN, BORSKA & WAX

barry s. pearlman yvonne e. lang nicole g. minkow · • family and medical leave act (fmla) ......

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